Johnson alleges Penske, her former employer, unlawfully discriminated against her on the basis of age and gender when Penske did not promote her in December 1993. Johnson seeks compensatory and punitive damages, attorney's fees, costs of suit and other such equitable relief as deemed proper. On 7 December 1995, Johnson filed a two count complaint (the "Complaint") in the Superior Court of New Jersey, Law Division, Morris County, alleging claims of gender discrimination and age discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. On 7 February 1996, Penske removed the action to the United States District Court for the District of New Jersey.

On 14 August 1996, Penske submitted, pursuant to Rule 12N, Appendix N ("Rule 12N") of the General Rules for the District of New Jersey, a motion for summary judgment (the "Motion for Summary Judgment").
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For the reasons set forth below, the Motion for Summary Judgment is granted.

Facts

A. The Penske Corporation

Penske is a national truck rental and leasing company which has field operations located throughout the United States and parts of Canada. 17 June 1996 Certification of Joseph Moleski ("Moleski Cert."), attached to Cerra Cert. as Exhibit F, P 3. Penske's corporate headquarters are located in Reading, Pennsylvania. Moleski Cert., P 3. Penske's organizational structure is divided into four operating regions: the Northeast, Southeast, Central and Western regions. Moleski Cert., P 4. Each region is headed by a Vice President. Moleski Cert. P 4. Each region is subdivided into three to four smaller geographic territories (an "Area"), headed by an Area Vice President. Moleski Cert., P 4.

These Areas are further subdivided into districts (a "District"). Moleski Cert., P 5. The number of Districts in each area varies between five and eleven, depending upon the population and demand of the Area. Moleski Cert., P 5. Within each District, a District Manager oversees the overall operations of the District. Moleski Cert., P 5. The District Manager supervises the various job functions including commercial lease activity, commercial and consumer rental activity, the service and maintenance functions and office administration. Moleski Cert., P 5. Four Penske employees directly report to the District Manager: the District Service Manager, the District Rental Manager, the Lease Sales Representative and the District Controller (now known as the District Administrator). Moleski Cert., P 6.

The District Service Manager is largely responsible for supervising the maintenance of the vehicles leased and rented at the field location. Moleski Cert., P 7. The Lease Sales Representative is primarily responsible for supervising lease sales, including the servicing of existing accounts and the soliciting of now lease business. Moleski Cert., P 7. The District Rental Manager is primarily responsible for managing the rental functions. Moleski Cert., P 8. At the time Johnson held the District Controller position, the District Controller's primary duty was to oversee the financial and administrative functions of the District. Moleski Cert., P 9. These responsibilities included training and supervising clerical staff, managing the accounting function at the district level, interacting with customers regarding licensing, billing, and other administrative issues. Moleski Cert., P 9.

Of the employees that report to the District Manager, the District Service Manager receives the highest base salary, plus a bonus and a company car. Moleski Cert., P 10. The Lease Sales Representative receives a base salary, a company car and commission based on the sale activity he or she generates. Moleski Cert., P 10. The District Rental Manager receives a base salary, a company car and is eligible for a bonus. Moleski Cert., P 10. Finally, the District Controller receives only a base salary comparable to that of the District Rental Manager, but no company car. Moleski Cert., P 10.

Districts may be further subdivided into branches (a "Branch") which are similarly structured to the District to which it reports. Moleski Cert., P 11. One key difference is that a Branch does not employ its own Controller, but rather the District Controller performs the functions for the Branch. Moleski Cert., P 11. The primary responsibilities of a Branch Manager are to oversee the operations of the Branch, which include supervision of the employees that directly report to the Branch Manager: the Service Manager, Lease Sales Representative and the Rental Manager. 6 June 1996 Deposition of Joseph Moleski ("Moleski Dep. Tr."), attached to Onufrak Cert. as Exhibit E; attached to Supp. Cerra Cert. as Exhibit D, 87:1-9.

Johnson began working for Penske in 1979. 14 March 1996 Vol. 1 Deposition of Johnson (the "Johnson Dep. Tr. 1."), attached to the Onufrak Cert. as Exhibit A; attached to Cerra Cert. as Exhibit A, 38:12. At that time, Johnson was employed as a service clerk in a division of Penske called Penske GM, which is located in Ronkomkoma, New York. Johnson Dep. Tr. 1.38:1 to 1.39:15. Johnson was promoted to service administrator, where she was responsible for assisting individuals experiencing problems with their rented trucks, boats or other equipment. Johnson Dep. Tr. 1.44:1-15. When individuals with problems called Penske GM. Johnson fielded the phone calls, made independent assessments of the problem and then dispatched a mechanic to the scene. Johnson Dep. Tr. 1.45:3-8, 1.44:10-11, 1.46:8-16, 1.48:11-13. Johnson also prepared price quotations with regard to the necessary repairs, and was involved in billing and the warranty process. Johnson Dep. Tr. 1.49:11-13; 4 April 1996 Interrogatory Answers of Johnson ("Johnson Interrog. Ans."), attached to Onufrak Cert. as Exhibit G, 4(7). Johnson obtained knowledge of mechanics through this position and her attendance at diesel mechanic courses. Johnson Dep. Tr. 1.45:12-16; 1 July 1996 Certification of Johnson ("Johnson Cert."), attached to Onufrak Cert. as Exhibit Q, P 3.

Johnson left Penske GM in 1982 when she relocated to New Jersey. Johnson Cert., P 4. In 1984, Johnson was hired as an 800 line Rental Representative for Penske Truck Leasing. Johnson Cert., P 5. In that position, Johnson received incoming calls, sold customers on the benefits of using Penske trucks, determined which type of truck would be most beneficial to the customer, answered concerns of customers, arranged for pick-up and drop off of trucks and applied the rental rate schedule to advise clients of their financial obligations. Johnson Cert., P 5. Johnson also supervised a clerk performing similar responsibilities. Johnson Cert., P 5.

After five months as an 800 line Rental Representative, Johnson accepted a position as a Warranty Claim Writer, which she held for approximately one year. Johnson Cert., PP 6-7. In that capacity, Johnson processed large volumes of warranty claims, presented them to component manufacturers for payment and negotiated controverted claims. Johnson Cert., P 6. When this division relocated to Reading, Pennsylvania, Johnson declined to move. Johnson Cert., P 7. Penske then promoted Johnson to the job of Assistant District Controller in Lodi, New Jersey. Johnson Cert., P 7.

The primary duty of the Assistant District Controller was to work in a training mode alongside the District Controller. 14 May 1996 Deposition of Michael Marsiglia ("Marsiglia Dep. Tr."), attached to Onufrak Cert. as Exhibit D; attached to Cerra Cert. as Exhibit D; attached to Supp. Cerra Cert. as Exhibit E, 101:6-11. The eventual transition for an Assistant District Controller is to District Controller once the necessary skills have been acquired and a position is available. Marsiglia Dep. Tr. 101:6-11. Johnson remained in the Assistant District Controller position for eight months, and was then offered a position as a Rental Account Manager in April 1986. Johnson Cert., P 8.

As a Rental Account Manager, Johnson was responsible for building a customer base at a new Penske location. Johnson Dep. Tr., 1.117:12-15. Johnson performed an area market survey and began marketing Penske services via telemarketing and direct mail. Johnson Cert., P 8. Johnson also had supervisory responsibilities over several agent locations. Johnson Cert., P 8. Johnson made sales calls with various Area and District Rental Managers and the Lease Sales Representative. Johnson Cert., P 8. Johnson took several seminars at that time to improve her sales skills. Johnson Cert., P 9. Johnson worked as a Rental Account Manager for nine months and was then offered a position as a District Controller. Johnson Cert., P 10.

In January 1987, Johnson accepted the position of District Controller in Pine Brook, New Jersey: this position was offered without an interview. Johnson Dep. Tr. 1.134:14-20, 1.139:5, 1.143:2-4. The job was a promotion, with a pay raise. Johnson Cert., P 10. As a District Controller, Johnson was responsible for the financial and administrative functions of the District, including assisting in the development and implementation of the District's business plan. Johnson Interrog. Ans., 5(5); Johnson Dep. Tr. 2.5:9-24, 2.6:1-5. Johnson managed the accounting functions of the District, such as accounts receivable, payroll and financial reporting. Johnson Cert., P 10. The position enabled Johnson to engage in client contact with regard to licensing, billing and other administrative matters. Johnson Cert., P 10. Johnson was also charged with the responsibility of training clerical personnel on the District's financial functions. Johnson Cert., P 10.

In 1987, the Pine Brook office did not have a Rental Manager. Johnson Cert., P 11. For a period of six to eight months while she was District Controller, Johnson assisted in performing the additional functions of the Rental Manager. Johnson Cert., P 11. After the Rental Manager position was filled, Johnson continued to work alongside each Rental Manager daily during her tenure. Johnson Cert., P 11. Johnson assisted in the implementation of sales promotion programs and customer follow-up programs, was involved in special projects such as training Controllers in other districts, organized and chaired Controller meetings, trained personnel at other locations on computer applications she developed, assisted her colleagues in the Service, Lease and Rental Departments as needed and she often involved herself in customer problem-solving. Johnson Cert., P 11.

In her capacity as a District Controller, Johnson was supervised by Terry Dubowick ("Dubowick"). Johnson Dep. Tr. 1.143:2-7. When Dubowick left Pine Brook in June 1990, Moleski became her supervisor. Moleski Cert., P 12. Moleski left his position as Pine Brook District Manager and was replaced by Bill Hopkins ("Hopkins") in September 1992. Moleski Cert., P 12. Johnson was 43 years old when she applied for the Pine Brook Branch Manager position in December 1993. Johnson Cert., P 16.

Johnson was selected as Controller of the Year in 1991 for the New York Metro Area and received favorable performance appraisals (the "Performance Appraisals")
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throughout her employment at Penske. Johnson Cert., PP 11-12.

a. Appraisal - 1984 to December 1987

Johnson's Performance Appraisals from 1984 indicate she exceeded her job requirements. See Performance Appraisal, dated 25 June 1984, attached to Onufrak Cert. as Exhibit I. During the period from December 1986 to 1987, Johnson first occupied the District Controller position. Performance Appraisal, dated 12/15/86 to 12/15/87. Comments on Johnson's Performance Appraisal indicate "[Johnson] has proven, in a short period of time, her capabilities as a department manager and Controller.... She is fluent in the operations of a district and is quickly learning to become a capable financial planner." Her appraiser noted that her "past experience in service, warranty and rental operations is used daily, increasing her value to the District." Performance Appraisal, dated 12/15/86 to 12/15/87.

b. Appraisal - December 1987 to January 1989

The Performance Appraisal from the period of December 1987 to January 1989 indicates "[Johnson is] always wooking (sic) to improve .... [She] continues to develop and improve her capabilities as a Department Manager and Controller. [Johnson] is a true team player who works well with everyone in the District." Performance Appraisal, dated 12/15/87 to 1/15/89.

c. Appraisal - January 1989 to April 1990

Johnson received an overall score of "4" on her Performance Appraisal, dated January 1989 to April 1990. Performance Appraisal, dated 1/15/89 to 4/15/90. Comments by her appraiser, Moleski, indicate Johnson is "always willing to help others and always living up to the commitments she makes .... [She] makes decisions quickly .... [Johnson] makes the right decision whether in favor of the customer or District.... [She is] absolutely the most self-motivated person I have ever worked with .... [Johnson] continues to develop skills that help every department manager .... [Johnson] has the personality and drive to succeed at any promotional level." Performance Appraisal, dated 1/15/89 to 4/15/90.

d. Appraisal - May 1990 to January 1991

Johnson received an overall score of 4.4 on her Performance Appraisal, dated May 1990 to January 1991. Performance Appraisal, dated 12/15/87 to 1/15/89. Comments on the appraisals include: "[Johnson] is well-liked and respected by subordinates, peers, and customers .... She is an effective department manager who delegates the workload and reviews progress very well...." Performance Appraisal, dated 12/15/87 to 1/15/89. The appraiser, Moleski, indicated Johnson needed more experience in sales and recommended participating in seminars and workshops. Performance Appraisal, dated 12/15/87 to 1/15/89.

Johnson received a 4.5 in her Performance Appraisal, dated January 1992 to September 1992. Performance Appraisal, dated 1/92 to 9/92. The appraiser, Moleski, noted that "[Johnson] has developed a confidence in her position that enables her to communicate in a clear and concise manner .... [Johnson] has developed innovative systems on the Districts [computer] and trained personnel to utilize these programs. As a result, the office routine runs very smoothly." Performance Appraisal, dated 1/92 to 9/92.

g. Appraisal - September 1992 to September 1993

Johnson received an overall performance rating of 4.5 on her Performance Appraisal, dated September 1992 to September 1993. Performance Appraisal, dated 9/92 to 9/93. The appraiser. Hopkins, noted that: "[Johnson] has good relationship with all of Pine Brook's customer base and is often called to solve a problem. She also checks in on the customer on a timely basis to see if she can be of assistance .... When called upon [Johnson] will assist others to plan [and] organize .... She sees what has to be done and acts on it without being directed to do so .... She has involved herself more directly with our customers and has proven to be an asset through her professional manner and has a positive attitude." Performance Appraisal, dated 9/92 to 9/93.

h. The Candidate Rating Form

The Candidate Rating Form (the "Candidate Rating Form") is another tool used by Penske to assess the skill, promotability, relocatability and strength and weaknesses of the employee. Candidate Rating Forms, dated 1990 to 1993, attached to Onufrak Cert. as Exhibit I. The skills section is rated on a scale of one to five, with one being unsatisfactory and five being exceptional. Johnson received Candidate Rating Form assessments from 1990 to 1993. Johnson generally received skills ratings of 4 and 5 for the various skills described on the Candidate Rating Form. All of the Candidate Rating Forms indicate the next suitable position for Johnson is Branch Manager. All of the Candidate Rating Forms indicate Johnson would be ready for the Branch Manager position within three to eighteen months. The 1993 Candidate Rating Form indicates Johnson was then ready for the position. See Candidate Rating Forms.

All of the Candidate Rating Forms for Johnson indicate her strength to be her organization and initiative. With the exception of the 1993 Candidate Rating Form completed by Hopkins, all the Candidate Rating Forms indicate Johnson required improvement in Sales.
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See Candidate Rating Forms.

C. Penske Downsizing of the Pine Brook Office

In late 1993, Penske decided to downsize the Pine Brook field office from a District to a Branch. Moleski Cert., P 13. The Pine Brook location then reported as a Branch to the South Plainfield District. 17 June 1996 Certification of Robert Costello ("Costello Cert."), attached to Cerra Cert. as Exhibit H, P 4. The decision to downsize the Pine Brook office was made by Costello, Vice President for the New York Metro Area, and Frank Mileto ("Mileto"), then-Senior Vice President of the Northeast Region. Costello Cert., P 3. The decision to downsize was due to the lack of growth and revenue. Costello Cert., P 4. The downsize decision was announced to the Pine Brook staff in late 1993. Moleski Dep. Tr. 143:10-13. Moleski told Johnson at a meeting after the announcement that maybe it was time for her to leave the company. Johnson Dep. Tr. 2.170:1-10.
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Moleski also stated to Johnson at this meeting that "maybe Pine Brook will finally become a non-smoking location." Johnson Cert., P 13. Because Johnson was the only smoker whose job status was questionable, Johnson believed the statement applied to her. Johnson Cert., P 13.

D. Result of the Downsizing

The restructuring caused Hopkins, who was then the District Manager of the Pine Brook location, to be reassigned to a new location. Moleski Cert., P 14. Hopkin's responsibilities were to be assumed by a Branch Manager (the "Branch Manager Position"). Moleski Cert., P 14. The individual hired in the Branch Manager Position would report to Moleski, the current District Manager of South Plainfield. Moleski Cert., P 14.

The District Controller position at the Pine Brook location, held by Johnson, was also eliminated through the restructuring. Johnson Cert., P 14. The Controller functions were to be supervised by the District to which the Branch reported. Johnson Cert., P 15. Penske had to decide who was going to retain the Controller position -- Johnson, the Controller at the location to be downsized, or Calvin Smith ("Smith"), the Controller at the South Plainfield District. Johnson Cert., P 15. Penske policy directed the position to be awarded to the employee based upon the person's experience and time with the company. Marsiglia Dep. Tr., 69:17-25. If both candidates were equal, Penske would eliminate the position at the downsized location. Marsiglia Dep. Tr. 69:17-25. Based on this policy, Smith was awarded the position. Johnson Cert., P 15. Johnson was told Penske would try to find her another job. Johnson Dep Tr. 2.48:23 to 2.49:7, 2.65:12 to 2.66:12. Johnson stated her interest in the position of Branch Manager. Johnson Cert., P 16.

The reorganization also resulted in a reduction of the clerical staff, whose functions were to be performed in the South Plainfield District. Marsiglia Dep. Tr. 72:5-9.

E. Filling the Branch Manager Position at Pine Brook

In early December 1993, three candidates (the "Candidates") interviewed for the Branch Manager Position at the Pine Brook office - Johnson, Gene Raffa ("Raffa") and David Dean ("Dean"). Moleski Cert., P 16. The Candidates were interviewed by Moleski, the District Manager of the South Plainfield office, Costello, the then-Area Vice President and Marsiglia, the Regional Human Resources Manager. Johnson Cert., P 16. The job was a promotion for each of the Candidates. Johnson Cert., P 16.

1. The Interview Process

a. Penske Policies

Penske did not have formal policy guidelines for conducting interviews at the time the Candidates interviewed for the Branch Manager Position. Johnson Cert., P 17. Penske did have a promotion policy in effect (the "Promotion Policy"). The Promotion Policy provides, in relevant part:

During this time, Penske also had an Employment and Equal Opportunity policy (the "Equal Opportunity Policy") which provided: "Penske Truck Leasing will take affirmative action to ensure equal opportunity for all employees or prospective employees without regard to race, color, religion, national origin, age, sex, marital status...." 10 October 1991 Equal Opportunity Policy, attached to Onufrak Cert. as Exhibit L.

b. Marsiglia Preparation

Marsiglia indicated he prepares for an interview by looking at the individual's work record and responsibilities. Marsiglia Dep. Tr. 54:2-4. Marsiglia generally reviews performance appraisals unless he knows the individual well. Marsiglia Dep. Tr. 56:1-4. During the interview, Marsiglia mentally compares and measures the traits and qualities necessary to the position with those of the interviewing Candidates. Marsiglia Dep. Tr. 55:1-5.

Marsiglia did not review any of the three Candidates' performance appraisals prior to the interview for the Branch Manager Position because he felt he knew each of the Candidates sufficiently. Marsiglia Dep. Tr. 79:19-24.

c. Costello Preparation

Costello stated his decisions on hiring are based upon a person's experience, within and without the company, the person's aptitude for the job, the make-up of the position he or she is applying for, the needs of the location, the distance from the location and the performance of the candidate in the interview. Costello Dep. Tr. 72:9-24. Costello did not recall reviewing each Candidate's personnel file before the Branch Manager Position interviews. Costello Dep. Tr. 74:3-8, 88:1-8. Costello believes he spoke to Johnson's District Manager about her employment ...

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